Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Deputy Commissioner of Taxation; in the matter of James Hardie Australia Finance Pty Ltd (Deregistered) (No 2) [2008] FCA 1928
DEPUTY COMMISSIONER OF TAXATION AND MAX CHRISTOPHER DONNELLY IN HIS CAPACITY AS LIQUIDATOR OF JAMES HARDIE AUSTRALIA FINANCE PTY LTD (IN LIQUIDATION)
NSD 901 of 2008
LINDGREN J
10 DECEMBER 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 901 of 2008
IN THE MATTER OF JAMES HARDIE AUSTRALIA FINANCE PTY LTD (DEREGISTERED) ABN 91 089 600 760 BETWEEN: DEPUTY COMMISSIONER OF TAXATION
Plaintiff
AND: MAX CHRISTOPHER DONNELLY IN HIS CAPACITY AS LIQUIDATOR OF JAMES HARDIE AUSTRALIA FINANCE PTY LTD (IN LIQUIDATION)
Applicant
JUDGE: LINDGREN J
DATE OF ORDER: 10 DECEMBER 2008
WHERE MADE: SYDNEY
THE COURT DIRECTS THAT:
1. The applicant, Max Christopher Donnelly (Mr Donnelly), in his capacity as liquidator of James Hardie Australia Finance Pty Ltd (in liquidation) (JHAF), is not prevented from entering into: (A) the proposed Deed of Settlement between inter alia, James Hardie Industries NV, James Hardie Research (Holdings) Pty Ltd, JHAF, the Commissioner of Taxation of the Commonwealth of Australia (the Commissioner) and himself in the terms, or substantially in the terms, of Confidential Exhibit 3 in this proceeding ("the proposed Deed of Settlement"); and (B) the proposed Loan Agreement between JHAF as Borrower and James Hardie International Finance BV (JHIFBV) as Financier in the terms, or substantially the terms, of Confidential Exhibit 4 in this proceeding ("the proposed Loan Agreement"), by the circumstances that: (a) the proposed Loan Agreement provides for JHAF to draw down under a facility to be provided by JHIFBV an amount equal to the JHAF Settlement Sum (defined in the proposed Deed of Settlement) for payment to the Commissioner under the proposed Deed of Settlement upon terms, inter alia, that: (i) recourse by JHIFBV to JHAF under the Loan Agreement is limited to the amount of the "Borrower's Net Assets" (as defined in the proposed Loan Agreement) as at the date of demand, and (ii) Mr Donnelly has no personal liability for the obligations of JHAF under the proposed Loan Agreement; and (b) the proposed Deed of Settlement makes provision for an application for termination of the winding up of JHAF to be made by its sole shareholder, JHIFBV, and for Mr Donnelly to support that application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA
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